Why Health Lawyers Must Be Public-Law Lawyers: Health Law In the Age of the Modern Regulatory State

Health law is not often framed as part of the public-law landscape, and my goal is to explain why it should be. My aim is to convince the next generation of health lawyers, policymakers, and health-law scholars that they must see health law as a field that is intimately related to Congress, federal statutes, federal agencies, and federalism, in order to have an impact on it. I will then apply this public-law framework to some current events involving the 2010 health reform statute-the Affordable Care Act ( ACA )-to illustrate how shaping health law today requires an understanding of the central roles now played in the field by the quintessential players in the public-law domain: Congress, federal agencies, the states, and the federal courts

The Federal Common Law of Statutory Interpretation: Erie for the Age of Statutes

We do not have an Erie for the Age of Statutes. The Erie that we have addresses a world in which the common law dominated and in which federal courts could go ahout their daily work hy recourse to state-court-created doctrine,^ usually without creating federal common law. Those understandings do not fit an era in which federally made statutory law dominates the legal landscape and the primary role of federal courts is to interpret it. But the creation of federal common law remains discouraged, thanks to Erie\u27s continuing vitality and the durahility of the notion that Erie requires federal common law making to he limited and restricted. As a result, federal courts have spent the last century engaged in an under-the-radar enterprise of fashioning and appl5dng what aree arguably hundreds of federal common law doctrines to questions of federal statutory interpretation, without acknowledging that they are doing so and without explaining how their actions fit into the Erie paradigm

The Ripple Effect of Leg-Reg on the Study of Legislation and Adminstrative Law in the Law School Curriculum

Most of the current debates over adding a mandatory legislation administration course to the law school curriculum rightly focus on the need for and value of such a course, or on what traditional core course(s) the so-called leg-reg course might replace. Less often investigated, however-and the subject of this article-is the question of how leg-reg might affect preexisting or future upper-level offerings in legislation and administrative law. Also rarely probed is the question of whether the impact on the two fields is the same. Given that legislation is the younger and less-entrenched field, this author has long wondered whether the recently developed upper-level legislation course survives leg-reg to the same degree that upper-level administrative law may survive. If it does not, one has to evaluate whether reaching more students through leg-reg is worth what may be lost in the reduction of more complex upper-level offerings. These questions should be of great interest not only to leg-reg\u27s detractors but also to its proponents, who must balance considerations of breadth, i.e., reaching the most students, and depth, i.e., how much can be taught to first-year law students in a course that combines element of two black-letter courses in their own right

Imperfect Statutes, Imperfect Courts: Understanding Congress\u27s Plan in the Era of Unorthodox Lawmaking

Statutory interpretation often seems like a doctrinal and jurisprudential abyss. We didn\u27t need Obamacare to show us that, but it sure helped. The Court\u27s statutory cases over the past decades have had the feeling of being one-offs : the Court seems to careen from case to case, wielding literally hundreds of interpretive presumptions that have no hierarchy among them, no link to Congress, and that seek to impose a coherence and simplicity on modern statutes that those statutes cannot bear. It is nearly impossible to predict which of these presumptions - the so-called canons of construction - will control the next case. The Court\u27s dominant theorists, its textualists, defend these doctrines on the ground that Congress is incomprehensible and so these rules and a laser focus on text are the best that courts can do. And yet no modern court is going to read a thousand-page statute cover-to-cover. Sometimes the cases focus on a single word; it can feel like a game even though the stakes are incredibly high